Facts
X. (born 1967) originally comes from Serbia and has been married to a Swiss woman since 1998. He was naturalized in 2002. X. has three children from his first marriage, who hold Serbian citizenship. After the divorce, the Municipal Court of Bujanovac awarded custody to the mother, and the children lived with her and their paternal grandparents. In 2007, the Municipal Court transferred custody to X.
In December 2006, X. applied for a residence permit for his children to stay with him in the Canton of Zurich, which the Security Directorate (Migration Office) of the Canton of Zurich rejected on August 23, 2007. The Cantonal Government and the Administrative Court of the Canton of Zurich shared this assessment on July 2, 2008, and January 21, 2009, respectively.
X.'s children filed an appeal with the Federal Court, requesting the annulment of the Administrative Court's decision and the granting of a residence permit for them to stay with their father in the Canton of Zurich. They argued that their biological mother was no longer willing and, due to her remarriage, also no longer able to care for them; the same applied to their grandparents due to their advanced age and health condition. They claimed that the rejection of their request constituted unlawful discrimination against Swiss nationals.
Considerations
The Federal Court dismissed the appeal. It stated that for partial family reunification with a parent, special family reasons or a necessary change in the care arrangements must be present. This was not the case here, as the children had spent a significant part of their youth with their mother or grandparents in their home country, and they could continue to be cared for by them.
While it appears doubtful whether there is a valid reason to treat Swiss citizens worse than EU/EFTA nationals in family reunification,…